Federal Communications Commission Washington, D.C. 20554 January 3
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Federal Communications Commission Washington, D.C. 20554 January 3, 2008 DA 08-16 In Reply Refer to: 1800B3-JWR Released: January 3, 2008 Mr. Lloyd B. Roach 1025 Meetinghouse Road West Chester, Pennsylvania 19382 Christopher D. Imlay, Esq. Booth, Freret, Imlay and Tepper, P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 In re: Group A LICENSEE, LLC WCOJ(AM), Coatesville, PA Facility ID No. 63593 File No. BR-20060322AAK Group B LICENSEE, LLC WCDL(AM), Carbondale, PA Facility ID No. 58316 File No. BR-20060322ABO WLNP(FM), Carbondale, PA1 Facility ID No. 58314 File No. BRH-20060322ABP WNAK(AM), Nanticoke, PA Facility ID No. 59757 File No. BR-20060322ABM WAZL(AM), Hazleton, PA Facility ID No.132 File No. BR-20060322ABQ WHYL(AM), Carlisle, PA Facility ID No.74556. File No. BR-20060322ABN Applications for Renewal of License Petition to Deny 1 Formerly WNAK-FM. The Station’s call sign was changed on July 5, 2006. Dear Mr. Roach and Counsel: We have before us the above-captioned applications (collectively, the “Applications” and each, an “Application”) filed by Group A Licensee, LLC and Group B Licensee, LLC (collectively, the “Licensees” and each, the “Licensee”)2 to renew the licenses of the above-referenced stations. Also on file is a petition to deny (the “Petition”)3 filed by Lloyd B. Roach (“Roach”) on April 17, 2006.4 For the reasons set forth below, we deny the Petition and grant the Applications. Background. The Licensees timely filed the Applications on March 22, 2006. Roach, a former shareholder in Route 81, filed his pleading on April 17, 2006. Although the pleading is styled a “Petition to Deny,” there is no indication in the pleading that it was properly served on the Licensees. Accordingly, the pleading does not meet the procedural requirements for petitions to deny set forth in Section 309(d) of the Communications Act of 1934, as amended (the “Act”).5 It will therefore be treated as an informal objection under Section 73.3587 of the Commission’s Rules (the “Rules”).6 Discussion. Pursuant to Section 309(e) of the Act, informal objections must provide properly supported allegations of fact that, if true, would establish a substantial and material question of fact that grant of the application would be prima facie inconsistent with Section 309(k) of the Act,7 which governs our evaluation of an application for license renewal. Specifically, Section 309(k)(1) provides that we are to grant the renewal application if, upon consideration of the application and pleadings, we find that: (1) the station has served the public interest, convenience, and necessity; (2) there have been no serious violations of the Act or the Commission’s Rules (the “Rules”); and (3) there have been no other violations which, taken together, constitute a pattern of abuse.8 If, however, a licensee fails to meet that standard, the Commission may deny the application—after notice and opportunity for a hearing under Section 309(e) of the Act—or grant the application “on terms and conditions that are appropriate, including a renewal for a term less that the maximum otherwise permitted.”9 2 Licensees are wholly owned subsidiaries of Route 81 Radio, LLC (“Route 81”). 3 Licensees jointly filed an Opposition on May 17, 2006. 4 Roach controls Meetinghouse Media, Inc. (formerly WCOJ Radio Company, Inc.), West Chester, Pennsylvania, which has a minority interest in Route 81 Radio, the parent company of the Licensees. 5 47 U.S.C. § 309(d). 6 47 C.F.F. § 73.3587. 7 See, e.g., WWOR-TV, Inc., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 note 10 (1990), aff’d sub nom. Garden State Broadcasting L.P. v. FCC, 996 F.2d 386 (D.C. Cir. 1993), rehearing denied (Sep. 10, 1993); Area Christian Television, Inc., Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (informal objections must contain adequate and specific factual allegations sufficient to warrant the relief requested) (“Area Christian”). 8 47 U.S.C. § 309(k)(1). The renewal standard was amended to read as described by Section 204(a) of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). See Implementation of Sections 204(a) and 204(c) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures), Order, 11 FCC Rcd 6363 (1996). 9 47 U.S.C. §§ 309(k)(2), 309(k)(3). 2 Technical violations. Roach first alleges that Licensee violated the Commission’s rules concerning tower safety and maintenance of the WNAK(AM) and WHYL(AM) towers. Roach states that he repeatedly warned Licensee that stations WNAK(AM) and WHYL(AM) were in need of “immediate maintenance” in order to comply with sections 73.1213(a) and (b) of the Commission's rules, on tower safety and maintenance, and that he issued a verbal and written warning about the “dangerous condition” of the AM towers at both stations, which included tower structure, lighting, and painting problems.10 Roach maintains that these “complaint matters” remained unresolved as of March 3, 2006. In addition, Roach alleges that the Licensees “repeatedly violated” the Commission’s rules regarding “city-of-license requirements” in Sections 73.1125, 73.1350 and 73.1400 of the Rules at Stations WCDL(AM) and WLNP(FM) by not maintaining “properly manned and supervised space” in the City of Carbondale and by not having the capability of transmitting from the city of license “on demand.” 11 Roach states that despite repeated warnings by the Chief Operator and the Contract Engineer, along with requests for additional capital to bring the stations into compliance, “it is [his] belief that these violations continue to exist today.” In their response, Licensees state, among other things, that Roach’s Petition is “completely baseless” and unsupported by any affidavits, certifications, or declarations from any consulting or structural engineer or from any other competent individual with knowledge of the facts.”12 Licensees claim that stations WNAK(AM) and WHYL(AM) are in “full compliance” with sections 73.1213(a) and (b),13 and stations WCDL(AM) and WLNP(FM) in “full compliance” with section 73.1125 and the related provisions regarding program origination and remote control operation.14 We find that Roach has failed to present properly supported, specific allegations of fact to establish a substantial and material question of fact concerning either WNAK(AM)’s or WHYL(AM)’s towers 10 See 47 C.F.R. §§ 73.1213(a) and (b) (“Antenna structure, marking and lighting). 11 Roach cites, specifically, the alleged violation of 47 C.F.R. §§ 73.1125 (a)(l) and (a)(3), concerning the required location of a station’s main studio; 73.1350 (b), (b)(l) and (b)(2), concerning transmission system operation and personnel; and 73.1400 (a)(ii), regarding remote control operation of transmission system. 12 Objection at 3. 13 Licensees support their argument with an affidavit from Route 81’s consulting engineer Matthew W. Lightner. His affidavit indicates, among other things, that there is some minor “surface rust” on the WHYL(AM) towers and guy wires which does not affect the tower’s structural integrity. He also states that the tower is fully compliant with required painting and lighting specifications, and the fences around the tower “are in good condition.” With respect to WNAK(AM)’s tower, Mr. Lightner states that the tower has no major issues and that it is in full compliance with all tower painting and lighting specifications as well. Opposition at 4 and Declaration of Matthew W. Lightner. 14 Licensees indicate that both WCDL(AM) and WLNP(FM), licensed to Carbondale, Pennsylvania, have a main studio located in the Carbondale City Hall at One Main Street within the city of Carbondale, from which WCDL(AM) originates all of its programming and from which WLNP(FM) does “voice tracking” for nine hours each day. The Licensees maintain that all programming for the Stations could be originated at this location, if necessary. Licensees also state that they keep the Stations’ public inspection files at this location as well. Opposition at 5 and Declaration of Station Manager Ed Histed. 3 or WCDL(AM)’s and WLNP(FM)’s main studios.15 Moreover, Roach’s conclusory allegations are adequately rebutted by the unchallenged declarations under penalty of perjury from Licensees’ employees having personal knowledge of these matters.16 Therefore, further consideration on these issues is unwarranted. Roach also alleges that Licensee misrepresented the facts in its March 30, 2006, ownership report. He states that in June of 2004, he executed, as WCOJ Radio Company, Inc., a Contribution Agreement, filed with the Commission, to voluntarily transfer station WCOJ(AM) to Route 81.17 Roach states that this contribution of equity was made and approved by the Commission with the understanding that Roach would receive an 18.9 percent equity interest in Route 81 and the Licensees. Roach states that the Licensees, controlled by the parent company,18 “failed to perform on the promise of equity” and “took control” of the promised 18.9 percent. Roach maintains that “[t]his theft of 18.9 percent equity” violated section 73.3540 (f)(3)of the Commission’s rules19 in that it was, in effect, a transfer that required prior Commission approval, and as a direct consequence, the March 30, 2006, ownership report is “in conflict with the facts.” In this regard, Roach asserts that the Licensee’s parent company willfully and knowingly filed untruthful information with the Commission in violation of Sections 73.1015 and 73.3615 (a)(2)(i) of the Rules.20 In Opposition, the Licensees state that any transfer of Roach’s 18.9 percent equity interest in Route 81 did not require the filing of any Commission form because it did not occasion any “transfer of control” of Route 81.21 Moreover, the Licensees contend that Roach exercised a “put” option to sell his equity interest in Route 81 in September of 2005.